Deeplinks Blog posts about Cell Tracking

The Fourth Amendment protects us from “unreasonable” government searches of our persons, houses, papers and effects. How courts should determine what is and isn’t reasonable in our increasingly digital world is the subject of a new amicus brief we filed today in San Francisco federal court.

At issue is historical cell site data—the records of the cell towers a customer’s cell phone connects to. The government has long maintained that it’s unreasonable for customers to expect those records to remain private. As a result, the government argues it does not need a search warrant to obtain historical cell site records from cell phone providers.

Do you own an Android device? Is it less than three years old? If so, then when your phone’s screen is off and it’s not connected to a Wi-Fi network, there's a high risk that it is broadcasting your location history to anyone within Wi-Fi range that wants to listen.

The U.S. Supreme Court’s 1979 decision of Smith v. Maryland turned 35 years old last week. Since it was decided, Smith has stood for the idea that people have no expectation of privacy in information they expose to others. Labeled the third party “doctrine” (even by EFF itself), Smith has come up over and over in the debates surrounding electronic surveillance and NSA spying.

EFF sent a letter this week opposing SB 962, a bill by California Senator Mark Leno that mandates every phone that will be sold in the state to have a "kill switch"—a technological solution that would remotely disable a smartphone if, say, it were stolen or lost. Despite our concerns, the bill passed out of committee in the Assembly.

There's a simple reason why we opposed this particular bill—and why we almost always oppose bills with technological mandates. Technology is fast; the law is slow. While there is an important place for policy in a world where the Internet and devices are readily available to both consumers and government actors, institutionalizing specific technical solutions—such as making every cell phone manufacturer feature a "kill switch" program—is risky.

When courts issue new decisions about how law enforcement can obtain records and data from companies, it's not just the police who have to follow the new rules. The companies that turn over the data have a big role to play in ensuring that the law is followed. A new court decision requiring police to use a search warrant in order to obtain cell tracking records underscores the importance phone companies can play in extending important privacy protections throughout the country.